Justia Legal Ethics Opinion Summaries

Petitioner was ordered to be removed from the United States in absentia on June 23, 2006. On August 26, 2019, Petitioner, represented by counsel, filed a motion to reopen the removal proceedings and rescind the in-absentia removal order. The immigration judge (“IJ”) denied that motion, and the Board of Immigration Appeals (“BIA”) affirmed. Petitioner petitioned the court to review that affirmance, arguing that the BIA erred in determining that she was not entitled to equitable tolling of the statutory deadline for filing a motion to reopen because, although she had shown exceptional circumstances, she had not shown that she had pursued her rights diligently.   The Fifth Circuit denied Petitioner’s petition to reopen. The court explained that it has authority to review only the final decision of the BIA unless the underlying decision of the IJ influenced the BIA’s decision. Here, the court explained that even accepting arguendo that Petitioner was prevented from participating in the 2006 proceedings or seeking that they are reopened by her abusive partner and that she was traumatized and unable to seek legal help for some time after escaping the abuse, Petitioner admits that she obtained legal representation—from the very same lawyer representing her here—more than two years before filing her motion to reopen the removal proceedings. Thus, the court cannot conclude that the BIA abused its discretion in finding that Petitioner failed to act with reasonable diligence in pursuing her rights. View "Masin-Ventura v. Garland" on Justia Law

Lane was detained on state criminal charges at the LaPorte County, Indiana jail. Lane sued Person, a doctor at the jail, for deliberate indifference to Lane’s medical condition, 42 U.S.C. 1983. While in jail, Lane sought medical care for an acoustic neuroma (non-cancerous tumor). Person did not order surgical removal of the tumor, which Lane believes was required. He later had the surgery. Nelson, a doctor who also treated Lane, testified that Person appropriately addressed Lane’s condition by ordering multiple MRIs and a consultation with a specialist. Person prevailed at summary judgment and was awarded $4,000 in costs; $2,750 was a one-day witness fee for Nelson,The Seventh Circuit affirmed but modified. The court noted that more than 30 days passed between the denial of Lane's motion to reconsider the summary-judgment decision and his notice of appeal, so the appeal was limited to a review of the decision on costs. There is a presumption under Rule 54(d) that a prevailing party recovers costs that are enumerated in 28 U.S.C. 1920. Although section 1920 includes witness fees, another statute, 28 U.S.C. 1821, more specifically addresses the allowable amount to $40 per day, and no other authority allows more. Person may recover total costs of $1,307.59. View "Lane v. Person" on Justia Law

Appellant, then proceeding pro se, brought an action against Respondent, her brother, alleging he had falsely accused her of committing crimes against him and their elderly parents. Respondent emailed the attorney in this matter (“Attorney”), who was Appellant’s husband since June 2015, her former coworker at his law firm, and later her counsel in this action, warning that if Appellant did not settle the action, Respondent would file a cross-complaint the next day.   The court subsequently dismissed Respondent’s cross-complaint. Appellant retained Attorney to represent her pro bono or at a discounted rate, having been advised by Attorney that he would likely need to testify at trial, and having executed informed written consent to Attorney’s representation notwithstanding his expected dual role as advocate and witness   Two months before trial, Respondent moved to disqualify Attorney as Appellant’s counsel under California’s advocate-witness rule, viz., rule 3.7 of the Rules of Professional Conduct (Rule 3.7). The trial court disqualified Attorney from all phases of the litigation.   The Second Appellate District reversed the trial court’s disqualification order, holding that the trial court failed to apply the proper legal standards, and thereby abused its discretion, in disqualifying Attorney from representing Appellant under the advocate witness rule. The court explained that the trial court failed to apply Rule 3.7’s informed-consent exception. Indeed, the trial court failed even to cite Rule 3.7, instead applying the ABA Rule, which is not binding and lacks any informed-consent exception. The trial court further abused its discretion in failing to apply Rule 3.7’s limitation to advocacy “in a trial.” View "Lopez v. Lopez" on Justia Law

Wang sued her former attorney Nesse, alleging professional malpractice in his representation of Wang in her marital dissolution action. Following Nesse’s death, his estate moved for summary judgment on the grounds that Wang’s complaint, filed on December 21, 2015, was barred by the one-year statute of limitations, Code of Civil Procedure section 340.6. According to Nesse’s estate, although Wang and Nesse filed a substitution of attorney form on December 30, 2014, Nesse’s representation of Wang had actually ended earlier, on December 3 or December 17 at the latest, when Wang “discharged” Nesse or “consented” to his withdrawal. The trial court agreed and granted the motion. The court of appeal reversed. There is a triable issue of material fact as to whether Nesse continued to represent her on December 21, 2014, so Nesse’s estate failed to establish that the statute of limitations bars her complaint as a matter of law. View "Wang v. Nesse" on Justia Law

The issue this case presented for the Pennsylvania Supreme Court's review centered on whether Appellant’s legal malpractice claims against Appellees, her former attorneys, were barred under the Court’s decision in Muhammad v. Strassburger, McKenna, Messer, Shilobod & Gutnick, 587 A.2d 1346 (Pa. 1991), which held that a plaintiff could not sue his attorney on the basis of the adequacy of a settlement to which the plaintiff agreed, unless the plaintiff alleged the settlement was the result of fraud. Appellant, Dr. Ahlam Kahlil, owned a unit in the Pier 3 Condominiums in Philadelphia; the unit was insured by State Farm Fire and Casualty Company (“State Farm”). The Pier 3 Condominium Association (“Pier 3”) was insured under a master policy issued by Travelers Property Casualty Company of America (“Travelers”). In May 2007, Appellant sustained water damage to her unit as a result of a leak in the unit directly above hers, which was owned by Jason and Anne Marie Diegidio. Due to the water damage, Appellant moved out of her unit and stopped paying her condominium fees. Appellant filed suit against State Farm and Travelers, alleging breach of contract and bad faith, and against the Diegidios, alleging negligence. A year later, Pier 3 filed a separate lawsuit against Appellant for her unpaid condominium fees and charges. In affirming in part and reversing in part the trial court, the Supreme Court found that by finding Appellant’s claims were barred under Muhammad, the lower courts ignored other averments in Appellant’s complaint which did not allege fraud, but, rather, alleged legal malpractice by Appellees in allowing Appellant to enter into a settlement agreement in the Water Damage Case that subsequently precluded her from raising her desired claims in the Fees Case, while repeatedly advising Appellant that the settlement agreement would not preclude those claims. "[A]s our review of Appellant’s complaint demonstrates that she was not merely challenging the amount of her settlement in the Water Damage Case, but rather alleged that Appellees provided incorrect legal advice regarding the scope and effect the Travelers Release, we hold that Muhammad’s bar on lawsuits based on the adequacy of a settlement is not implicated in this case." View "Khalil v. Williams" on Justia Law

Gayle died in 2006. Attorney Johnston filed Chapter 13 bankruptcy petitions on behalf of Gayle in 2016 and 2018 at the request of Gayle’s daughter, Elizabeth, the Administratrix of her mother’s probate estate. After the dismissal of the 2018 petition, Elizabeth, pro se, filed three Chapter 13 petitions on Gayle’s behalf. The Chapter 13 Trustee sought sanctions against Bagsby after she filed yet another Chapter 13 petition.The bankruptcy court ordered Johnston to show cause why he should not be subject to sanctions for filing the two Chapter 13 petitions on behalf of a deceased person. After a hearing, the bankruptcy court reopened the first two cases and issued sanctions sua sponte against Johnston and Bagsby. The bankruptcy court determined that Johnston failed to conduct any inquiries or legal research, there was no basis in existing law to support a reasonable possibility of success, and the cases were filed for the express purpose of delaying foreclosure actions. The bankruptcy court concluded Johnston violated Rule 9011 of the Federal Rules of Bankruptcy Procedure. The Bankruptcy Appellate Panel and the Sixth Circuit affirmed the sanctions order. Johnson had admitted to the factual findings. The bankruptcy court was not required to find that Johnson acted in bad faith, in a manner “akin to contempt of court,” or with a specific mens rea but only whether Johnston’s conduct was reasonable. View "Johnston v. Hildebrand" on Justia Law

An assistant district attorney (the “DA”) in Fulton County, Georgia obtained a material witness warrant requiring Plaintiff to appear as a witness at trial. Plaintiff voluntarily appeared at trial, making execution of the warrant unnecessary. After the trial ended, the DA failed to inform the trial judge that the warrant needed to be recalled. A few months later, a police officer arrested Plaintiff and placed him in jail because of the outstanding warrant. A judge eventually ordered Plaintiff’s release.   Plaintiff brought a 42 U.S.C. Section 1983 action alleging, among other things, that the DA’s failure to initiate the warrant’s cancelation violated his Fourth and Fourteenth Amendment rights. The DA moved to dismiss the suit arguing that as a prosecutor she was entitled to absolute prosecutorial immunity. The district court agreed and dismissed Plaintiff’s claims against her.   The Eleventh Circuit reversed and held that absolute prosecutorial immunity does not extend to DA’s failure to take action to cancel the warrant. The district court thus erred in dismissing Plaintiff’s complaint.   The court wrote that determining whether prosecutorial immunity applies requires the court to take a fact-specific functional approach. Here, the court found that applying Third Circuit precedent from Odd v. Malone, 538 F.3d 202 (3d Cir. 2008), results in the conclusion that the DA is not entitled to absolute prosecutorial immunity. Thus the DA has failed to show that absolute immunity protects her post-trial conduct here. View "Kidanemariam Kassa v. Antionette Stephenson" on Justia Law

Plaintiff Floyd Chodosh appealed the dismissal of his case against defendants the Commission on Judicial Performance (the Commission), the Department of Justice, and former Attorney General Xavier Becerra (together with the Department of Justice, the Attorney General; and with the Commission, defendants) after the trial court sustained defendants’ demurrer to Chodosh’s second amended complaint. Chodosh was a resident or owner of property in a senior-owned mobile home park. Prior to bringing this action, Chodosh was one of several plaintiffs involved in litigation concerning the mobile home park in Orange County Superior Court. The Honorable Robert Moss, Judge of the Orange County Superior Court, was assigned to the case. Chodosh submitted a complaint to the Commission in April 2016, alleging Judge Moss committed judicial misconduct in the mobile home park case by reassuming jurisdiction over the case after being disqualified. The Commission acknowledged receipt of the complaint. Chodosh alleged he heard nothing further from the Commission about it, leading him to conclude no action was taken with respect to Judge Moss. Chodosh then pressed his complaint to the Attorney General. The Attorney General likewise acknowledge the complaint, but replied it could not investigate further. Chodosh thereafter filed this lawsuit, alleging Judge Moss committed judicial misconduct by “fixing” the mobile home park case against Chodosh and the other plaintiffs thereto. Having carefully considered the record and the parties’ arguments, The Court of Appeal concluded Chodosh failed to state facts sufficient to constitute a cause of action against any defendant. View "Chodosh v. Commission on Judicial Performance, et al." on Justia Law

Wagstaff & Cartmell, LLP (Wagstaff) filed a declaratory-judgment action against the Defendant-Attorney, seeking a declaration that Wagstaff owed nothing to Defendant for any work on a wrongful death lawsuit or, in the alternative, a determination of the amount it owed to Defendant.   Defendant filed counterclaims against Wagstaff, including a counterclaim under the theory of quantum meruit. The district court entered judgment in Wagstaff’s favor. On appeal, Defendant argued that the district court erred in (1) denying his motion to dismiss for lack of subject-matter jurisdiction (2) denying his motion for leave to dismiss counterclaims without prejudice and motions for leave to file his second amended answer (3) denying his motion to dismiss the declaratory-judgment action without prejudice under the abstention doctrine and motion to reconsider the denial of that dismissal motion and (4) denying, in part, his motion to alter or amend the judgment or, in the alternative, relief from judgment.The Eighth Circuit affirmed the district court’s ruling in Plaintiff’s favor. The court concluded that the district court did not abuse its discretion in denying Defendant’s motion to alter or amend the judgment or, in the alternative, relief from judgment. The court held that the district court reasonably interpreted Defendant’s response to Wagstaff’s third summary judgment motion as an abandonment of his quantum meruit claim. In addition, Defendant had not sustained his burden of proving that Wagstaff has engaged in misconduct that prevented him from fully and fairly presenting his case. View "Wagstaff & Cartmell, LLP v. Neal Lewis" on Justia Law

In a jury trial before District Judge Bruce, Shannon was convicted of 19 counts of sexually exploiting a child, 18 U.S.C. 2251(a) and (e), and one count of distributing child pornography, sections 2252A(a)(2)(A) and (b)(1). The charges arose from Shannon’s relationship with J.W., a minor; the two originally met when J.W. was around eight years old. Shannon was in his forties at the time. Judge Bruce sentenced Shannon to 720 months in prison.Shannon challenged those convictions under 28 U.S.C. 2255, arguing that his trial counsel was ineffective and that he did not receive a fair trial before an unbiased judge. The motion was assigned to District Judge Shadid, who denied relief. The Seventh Circuit affirmed. Given the extensive and powerful evidence against Shannon, even if his trial counsel’s performance was deficient, he has failed to show that he was prejudiced by any deficiency. On the judicial-bias claim, the court found that ex-parte communications between Judge Bruce and staff of the U.S. Attorney’s office do not warrant a new trial on guilt or innocence. Based on those ex parte communications and comments by Judge Bruce at Shannon’s sentencing that implicitly discouraged an appeal, the court concluded that Shannon must be resentenced before a different judge. View "Shannon v. United States" on Justia Law